The positive duty: The next step in eliminating sex-based discrimination and harassment

What is the new positive duty?

The positive duty is a new statutory obligation found in section 47C of the Sex Discrimination Act 1984 (Cth) (SDA) that requires organisations and businesses to ‘take reasonable and proportionate measures’ to eliminate the following unlawful conduct as far as possible:

• discrimination on the ground of sex in a work context for employment relationships, commission agents, contract workers and partnerships;
• sexual harassment in connection with work on the ground of sex;
• sex-based harassment in connection with work;
• conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and
• related acts of victimisation.

The rationale of the positive duty is that the ‘costs of responding to discrimination, harassment and victimisation only once it has already occurred, are too high. Harm suffered by those experiencing the conduct can be serious and long lasting, as can the impacts on the broader workforce and the organisation or business.’[1]

Where the previous mechanism in the SDA relied on complaints being made after a person experienced unlawful conduct, the positive duty imposes a requirement for the employer to take proactive action before the harmful behaviour occurs.

Who owes the positive duty?

The positive duty is imposed on an employer and ‘persons conducting a business or undertaking’ (referred to in the legislation as the Duty Holder). ‘Employer’ in the SDA is implicitly defined as a person who employs another person, including by way of part-time or temporary employment. A ‘person conducting a business or undertaking’ has the same meaning as in the Work Health and Safety Act 2011 (Cth) and is intentionally broad to extend beyond the traditional employer/employee relationship to:

• local government councils;
• public and private companies;
• partners in a partnership, franchisors and franchisees;
• principal contractors and head contractors.

Whose conduct does the positive duty cover?

Duty Holders must aim to eliminate unlawful conduct engaged in by themselves or their employers, workers and agents, in connection with their work (by virtue of a principle known as vicarious liability). In this instance, worker is a broad term that encompasses a wide range of people such as gig workers, volunteers, apprentices, outworkers, employees, contractors or subcontractors.

For all conduct except for discrimination on the grounds of sex, Duty Holders can be held liable for actions by third parties towards the Duty Holder's employees and workers in connection with their work. Third parties can include customers, clients, patients, students, and members of the public.

Guidelines for complying with the positive duty

The Australian Human Rights Commission (AHRC) has issued the Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (the Guidelines) to help employers comply with the new positive duty in the SDA. The Guidelines are not legally binding but provide guidance for Duty Holders to understand and achieve the positive duty.

The Guidelines explain the expectations of businesses and organisations in achieving the positive duty, break down each obligation and set out seven standards that the AHRC expects all organisations and businesses to meet to satisfy the positive duty. The Guidelines also provide examples of actions a Duty Holder may take to meet the following standards:

• leadership;
• culture;
• knowledge;
• risk management;
• support;
• reporting and response; and
• monitoring, evaluation and transparency.

The Guidelines recognise that taking action to eliminate relevant unlawful conduct can look different for each organisation and business depending on what is ‘reasonable and proportionate’, taking into account matters such as the size of the entity and their available resources.

The Guidelines can be accessed here.

Enforcing the positive duty

From 12 December 2023, the AHRC can enforce the positive duty through commencing an inquiry where it ‘reasonably suspects’ that an organisation or business is not complying with the positive duty. The inquiry can be undertaken without the consent of the Duty Holder.

The following factors in the Guidelines will also be used by the AHRC in assessing compliance with the positive duty:

• the size, nature and circumstances of the business or undertaking;
• the resources of the organisation, whether financial or otherwise;
• the practicability and the cost of measures to eliminate the unlawful conduct; and
• any other relevant matter (which may include the level of worker supervision, working hours, and geographic location).

Should you need advice in relation to understanding or implementing the positive duty, including training your staff, please do not hesitate to contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au , Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au or Divya Narayan on +61 8 8210 1279 or dnarayan@normans.com.au.

[1] Page 8 of the Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth).